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2000 Supreme(All) 1431
IN THE HIGH COURT OF ALLAHABAD
V. M. Sahai, J.
AMIT KUMAR - Appellant
Versus
DISTRICT INSPECTOR OF SCHOOLS, JAUNPUR - Respondents
C. M. W. P. 50286 Of 2000
Decided On : 11/21/2000
Indra Raj Singh, SUNITA AGRAWAL
The main legal point established in the judgment is that the provisions of Regulation 101, requiring the appointing authority to obtain prior approval of the District Inspector of Schools before making any appointment on a non-teaching post, are mandatory and not directory.
Headnote:
Regulation 101 - Appointment Approval - Regulations 101, 102, 103, 106, 107 - The court held that the provisions of Regulation 101 of Chapter III of the Regulations framed under U. P. Intermediate Education Act, 1921, requiring the appointing authority not to fill a vacancy of a non-teaching post in an aided and recognised institution except with the prior approval of District Inspector of Schools is mandatory and not directory. The court emphasized the imperative nature of the word 'shall' and the use of 'except', and concluded that obtaining prior approval of the D. I. O. S. is a condition precedent for making any appointment on a non-teaching post. The court also discussed the absence of a fixed time limit for the D. I. O. S. to grant prior approval and the lack of provision for deemed approval, ultimately dismissing the writ petition due to the appointment being in violation of the mandatory provision of Regulation 101.
Fact of the Case:
The petitioner, son of a retiring clerk, was appointed to a non-teaching post without obtaining prior approval of the District Inspector of Schools (D. I. O. S.), which was required by Regulation 101 of the Regulations framed under U. P. Intermediate Education Act, 1921. The petitioner challenged the D. I. O. S.'s refusal to grant financial approval for the appointment.
Finding of the Court:
The court found that the appointment made by the appointing authority without obtaining prior approval of the D. I. O. S. on a non-teaching post was in violation of the mandatory provision of Regulation 101, and therefore, the petitioner was not entitled to any relief.
Issues: The key issue was whether the provisions of Regulation 101, requiring prior approval of the D. I. O. S. for filling a non-teaching post, were mandatory or directory.
Ratio Decidendi: The court held that the use of the word 'shall' and 'except' in Regulation 101 indicated an imperative and mandatory nature, making prior approval of the D. I. O. S. a condition precedent for making any appointment on a non-teaching post. The court also discussed the absence of a fixed time limit for the D. I. O. S. to grant prior approval and the lack of provision for deemed approval.
Final Decision: The writ petition was dismissed as the appointment made by the appointing authority without obtaining prior approval of the D. I. O. S. on a non-teaching post was in violation of the mandatory provision of Regulation 101.
( 1 ) THE Short question that arises for consideration in this petition is whether the provisions of regulation 101 of Chapter III of the Regulations framed under U. P. Intermediate Education Act, 1921, requiring the appointing authority not to fill a vacancy of a non-teaching post in an aided and recognised institution except with the prior approval of District Inspector of Schools is mandatory or directory.
( 2 ) ONE Ram Lala Singh was working as Junior Clerk [in brief clerk) in an aided and recognised institution Balika Inter College, Shahganj, Jaunpur (in brief institution ). In the institution, there was only one sanctioned post of clerk. Ram Lala Singh was due to retire on 31. 7. 2000. He took medical leave from 19. 6. 2000 to 31. 7. 2000. The Committee of Management (in brief management) sent a letter on 8. 1. 2000 to District Inspector of Schools (in brief D. I. O. S.) that since Ram Lala Singh was due to retire on 31. 7. 2000, permission be granted to fill the post of clerk. An advertisement was issued on 20. 6. 2000 by the management inviting applications to fill short-term vacancy of clerk, which was available till 30. 7. 2000. The petitioner, who is son of ram Lala Singh, applied. The selection committee selected him on 25. 6. 2000. He was issued appointment letter on 30. 6. 2000 in the leave vacancy of his father. He joined on 8. 7. 2000. On 10. 7. 2000 the manager wrote a letter to D. I. O. S. for granting financial approval to the appointment of the petitioner. No approval was granted. Meanwhile Ram Lala Singh retired on 31. 7. 2000 and a substantive vacancy of clerk became available. On 24. 8. 2000 the manager wrote a letter to D. I. O. S. , intimating him that he had already written letters on 8. 1. 2000. 2. 2. 2000, 22. 3. 2000, 19. 4. 2000. 26. 5. 2000. 20. 6. 2000 and 31. 7. 2000, for grant of permission to fill the post of clerk. But no prior approval has been granted by D. I. O. S. In the leave vacancy of Ram Lala singh the petitioner had been appointed and it was prayed that appointment of the petitioner be approved on the substantive vacancy of clerk and financial approval be granted. It was also prayed, in the alternative, that for making regular appointment on substantive vacancy of clerk, which occurred on 31. 7. 2000, permission be granted to the management to fill the post. The d. I. O. S. did not pass any order. The management on 4. 9. 2000 issued an advertisement in local newspaper Tarun Mitra published from Jaunpur inviting applications for appointment on the substantive post of clerk. The petitioner applied and was selected by the respondents on 20. 9. 2000. The management issued appointment letter to him on 6. 10. 2000. He joined on 11. 10. 2000. The manager sent a letter to D. I. O. S. on 12. 10. 2000 for granting financial approval to the appointment. The D. I. O. S. on 6. 11. 2000 refused to grant financial approval on the ground that his prior approval was not taken before making the appointment. It is this order dated 6. 11. 2000 which has been challenged by the petitioner in this writ petition.
( 3 ) I have heard at length Sri Indra Raj Singh, leaned counsel for the petitioner and Smt. Sunita agrawal, learned standing counsel appearing for the respondent No. 1.
( 4 ) THE learned counsel for the petitioner has vehemently urged that once the management wrote a letter to D. I. O. S. for obtaining prior approval before making the appointment of clerk, D. I. O. S. could not withhold permission. And the permission was to be granted within reasonable time. He placed reliance on the decision of this Court in Rajendra Yadav u. Deputy Director of Education, gorakhpur and others, 1999 AWC (3) 2123, and has urged that in case prior approval is not granted by D. I. O. S. within two weeks, it would be deemed that approval has been granted for making appointment and the management was well within its right to make appointment on the post of clerk. The learned counsel urged that the impu
